SCC Clarifies Rules for Foreign Nationals & Permanent Residents with Criminal Records


On October 19, 2017, the Supreme Court of Canada delivered its decision in Tran v. Canada (Public Safety and Emergency Preparedness) 2017 SCC 50 (“Tran”). The Tran decision clarifies the criteria to consider when a foreign national or permanent resident with a criminal record is attempting to enter or reside in Canada, and will impact an employer’s ability to bring those individuals into Canada.

Background

Mr. Tran, a permanent resident living in Canada, was charged for operating a marijuana grow-op and was convicted under the Controlled Drugs and Substances Act (the “CDSA”) for production of a controlled substance. Between the commission of the offence and the sentencing hearing, the maximum punishment for the offence was increased from seven to 14 years in jail.

Mr. Tran received a 12-month conditional sentence to be served in the community, which meant that he did not have to spend a day in jail.

Under the Immigration and Refugee Protection Act (the “IRPA”), a permanent resident of Canada may be deemed inadmissible to Canada for “serious criminality” if he or she has been convicted in Canada of an offence punishable by a maximum term of at least 10 years’ imprisonment or has received a term of imprisonment of more than six months. Individuals who are inadmissible are not allowed to enter or remain in Canada.

Following Mr. Tran’s sentencing, a Canada Border Services Agency (“CBSA”) officer prepared a report stating that Mr. Tran was inadmissible to Canada.

Mr. Tran filed an application for judicial review in the Federal Court, arguing the CBSA officer erred on three grounds, two of which being:

  1. That a conditional sentence is not a “term of imprisonment,” and accordingly Tran did not receive a term of imprisonment of more than six months; and
  2. That the increase to the maximum term of imprisonment imposed under s. 7(1) of the CDSA was not retroactively applicable to Tran, and thus Tran was not convicted of an offence punishable by a maximum term of at least 10 years’ imprisonment.

Mr. Tran argued that the Court should overturn the CBSA officer’s decision and order another officer to reconsider the question of his inadmissibility to Canada.

Supreme Court of Canada Decision

The Supreme Court sided with Mr. Tran and unanimously found that a conditional sentence did not constitute a “term of imprisonment” under the IRPA.

Justice Côté concluded that treating a conditional sentence as a “term of imprisonment” under the IRPA would create absurd outcomes. For example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences would be deported, while more serious offenders receiving six-month jail terms could remain in Canada.

“Seriously criminality,” Justice Côté stated, is determined not only by the length of the sentence imposed but also by the type of sentence imposed, and that a conditional sentence is generally less serious than a term of imprisonment.

On the second ground of appeal, the Court held that an increase to a maximum term of imprisonment is not retroactive.

Accordingly an individual convicted of an offence is to be judged on the maximum term of imprisonment in place at the time that the offence occurred.

Impact for Individuals Convicted Outside of Canada

The Tran decision and its impact on the IRPA affect not only Canadian permanent residents, but individuals convicted outside of Canada of an offence which would likewise be punishable in Canada.  Individuals convicted outside of Canada who are required to prove to the CBSA that they are “rehabilitated” must be aware of the Tran decision, as it will impact the “equivalency assessment.”

When applying for entry to Canada, individuals with a criminal record will face an “equivalency test” to determine if their conviction(s) constitute “criminality” or “serious criminality” under the IRPA. In short, the “equivalency test” compares the “outside Canada” offence to the equivalent Canadian offence to determine if the conviction(s) constitute “criminality” or “serious criminality” under the IRPA.

Criminal defence counsel representing permanent residents must be aware of the IRPA consequences when considering sentencing options for their clients.

For those outside of Canada, consult with Canadian immigration and criminal defence counsel before resolving criminal charges, if requiring or anticipating travel to Canada.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.